Jharkhand High Court
Kunal Kishor Sharma Son Of Sri Arun ... vs The State Of Jharkhand on 15 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 981 of 2013
Kunal Kishor Sharma son of Sri Arun Sharma, residents of village
Chota Murhari, P.O. and police station-Kako, District- Jahanabad
(Bihar)
... ... ... Petitioner
-Versus-
The State of Jharkhand ... ... Opposite Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. L.K. Tiwari, Advocate
For Opp. Party-State : Mr. Suraj Verma, A.P.P.
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Through Video Conferencing
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JUDGMENT
12/C.A.V. on 05.01.2021 Pronounced on 15.01.2021
Heard Mr. L.K. Tiwari, the learned counsel appearing on
behalf of the petitioner.
2. Heard Mr. Suraj Verma, learned A.P.P. appearing on behalf
of the Opposite Party-State.
3. The present criminal revision petition is directed against the
Judgment dated 04.09.2013 passed by the learned Sessions Judge,
West Singhbhum at Chaibasa in Criminal Appeal No. 78/2013,
whereby and whereunder the learned appellate court modified
the conviction and sentence of the petitioner passed by the
learned trial court and convicted him under Sections 376/511 of
the Indian Penal Code and sentenced him to undergo Rigorous
Imprisonment for 3½ years for the offence under Sections 376/511
of the Indian Penal Code and to pay fine of Rs. 5,000/- and in
default of payment of fine, to further undergo Simple
Imprisonment for 03 months and if the fine amount is realized,
the same was directed to be given to the Informant and dismissed
the appeal.
4. The petitioner had preferred the criminal appeal against the
Judgment of conviction dated 22.07.2013 and the order of sentence
dated 23.07.2013 passed by the learned Assistant Sessions Judge-
II, West Singhbhum, Chaibasa in S.T. No. 81 of 2013 / T.R. No. 16
of 2013 (arising out of Sadar P.S. Case No. 62/2012 dated
22.09.2012 corresponding to G.R. Case No.439/2012) whereby and
whereunder the petitioner was held guilty and convicted under
Sections 376/452 of the Indian Penal Code and was sentenced to
undergo Rigorous Imprisonment for 07 years and to pay fine of
Rs.10,000/- under Section 376 of the Indian Penal Code and was
further sentenced to undergo Rigorous Imprisonment for 04 years
and to pay fine of Rs.5,000/- under Section 452 of the Indian Penal
Code and in default in payment of fine, to further undergo
Imprisonment for 06 months and 03 months respectively and both
the sentences were directed to run concurrently and half of the
fine amount was directed to be paid to the victim. The learned
trial court had acquitted the petitioner for the alleged offence
under section 307/379 of IPC.
Arguments on behalf of the petitioner
5. Learned counsel appearing for the petitioner submitted that
there is no evidence on record to show that the petitioner had
arrived at the spot and in fact, he was never arrested from the
spot which is a missing link in the chain of circumstances of the
case and as such, the petitioner has been wrongly convicted by
the learned courts below. The learned counsel submitted that both
the learned courts below have failed to consider the aforesaid
aspect of the case and accordingly, both the impugned judgments
are perverse and are fit to be set aside.
6. Learned counsel for the petitioner further submitted that
without prejudice to the aforesaid submissions, some sympathetic
view may be taken considering the fact that the petitioner has
already remained in custody for a long time and accordingly, the
sentence of the petitioner may be confined to the period already
undergone by him in custody.
Arguments on behalf of the Opposite Party-State
7. Learned counsel for the Opposite Party-State, on the other
hand, submitted that concurrent findings have been recorded by
the learned courts below and there is enough evidence for
conviction of the petitioner including the evidence of the victim
who has made direct allegation against the petitioner. He also
submitted that there is no scope for re-appreciation of evidences
for interference at revisional stage and for coming to a different
finding. He further submitted that so far the sentence is
concerned, considering the heinous nature of the offence, the
petitioner does not deserve any sympathetic view in the matter.
Findings of this Court
8. After hearing the learned counsel for the parties and going
through the impugned judgments and the lower court records of
the case, this Court finds that the prosecution case is based on the
fardbeyan of the Informant/Victim, aged about 18 Years,
recorded by S.I. Mahendra Kumar of Sadar P.S. on 22.09.2012 at
20:15 hours at Sadar Hospital, Female Ward, Bed No.14. On
22.09.2012 at about 03:30 P.M., the Informant (P.W.-3) was in
Sweta General Store situated at Hind Chowk, Bari Bazaar
alongwith her elder sister (P.W.-4) and in the meantime, her
mother and another elder sister (P.W.-2) came in the shop. They
told the Informant that they are going to the house of one Suresh
Thakur situated at Seraikella More and the Informant also wanted
to go with them and said she will come after taking lunch and
changing her clothes. Thereafter, the Informant came to her house
to take lunch and to change her clothes and at that time, her father
was at grocery shop situated at Seraikella Chowk and she was
alone in her house. It was alleged that after taking lunch, when
the Informant was watching T.V., the petitioner entered into her
house with bad intention, closed the door and caught hold her
hand and forcibly took her to the room of her mother and tried to
commit sexual intercourse. On denial, the petitioner assaulted her
and went to the kitchen, brought a knife and threatened to kill
her. When the Informant asked the petitioner to go away from her
house, the petitioner slapped her and gagged her mouth by a
'dupatta' and encircled the rest part of the 'dupatta' in her neck
and pressed her neck due to which she became unconscious. It
was further stated that she cannot say what happened thereafter
and whether the petitioner had committed rape upon her or not.
On regaining consciousness, she found herself in Sadar Hospital,
Chaibasa where she was receiving treatment. It was further
alleged that her elder sister (P.W.-4) told her that after sometime,
her elder sister came to her house and when she opened the door,
the petitioner caught hold her hand and when she tried to untie
the Informant, the petitioner assaulted her and in the meantime,
the petitioner fled away leaving his slippers in the room.
9. On the basis of the fardbeyan, the case was registered as
Sadar P.S. Case No. 62/2012 dated 22.09.2012 under Sections 452,
376, 511 and 307 of the Indian Penal Code against the petitioner.
On 30.10.2012, the statements of the Informant/victim was
recorded under Section 164 of Cr.P.C. and after completion of
investigation, charge-sheet was submitted against the petitioner
under Sections 452, 376, 307 and 379 of the Indian Penal Code and
thereafter, on 21.11.2012, cognizance of the offence was taken
against him under the same sections and vide order dated
14.03.2013, the case was committed to the Court of Sessions for
trial and disposal.
10. On 15.05.2013, the charges under Sections 376, 452, 379 and
307 of the Indian Penal Code were framed against the petitioner
which were read over and explained to him in Hindi to which he
pleaded not guilty and claimed to be tried.
11. In course of trial, the prosecution examined altogether 08
witnesses to prove the charges against the petitioner. P.W.-1 is the
father of the Informant, P.W.-2 is the elder sister of the Informant,
P.W.-3 is the Informant-Victim herself, P.W.-4 is another elder
sister of the Informant, P.W.-5 is Sumit @ Abhijit @ Sujit Kumar
who is an independent witness, P.W.-6 is Dr. Arti Jyoti who had
medically examined the victim, P.W.-7 is S.I. Mahendra Kumar
who had recorded the fardbeyan of the Informant and is the
Investigating Officer of the case and P.W.-8 is Manoranjan Kumar,
Judicial Magistrate, 1st Class, Chaibasa who had recorded the
statements of the Informant-victim under Section 164 of Cr.P.C..
12. The prosecution exhibited the signature of P.W.-2 on the
seizure list as Exhibit-1, signature of the mother of the Informant
on the seizure list as Exhibit-1/1, signature of the Informant on
the fardbeyan as Exhibit-1/2, signature of the mother of the
Informant on the fardbeyan as Exhibit-1/3, signature of Informant
on the statement recorded under Section 164 of Cr.P.C. as Exhibit-
1/4, Medical Examination Report of the Informant-victim as
Exhibit-2, fardbeyan as Exhibit-3, endorsement on the fardbeyan
as Exhibit-4, formal F.I.R. as Exhibit-5, seizure list as Exhibit-6,
Statement of the Informant-victim recorded under Section 164 of
Cr.P.C. as Exhibit-7 and the seized slippers as Material Exhibit-I
and the seized knife as Material Exhibit-II.
13. On 19.06.2013, the statements of the petitioner were
recorded under Section 313 of Cr.P.C. wherein he simply denied
the incriminating evidences put to him and claimed to be
innocent. The petitioner did not adduce any oral or documentary
evidence in his defence.
14. This Court finds that the learned trial court discussed the
oral and documentary evidences adduced on behalf of the
prosecution and considered the arguments advanced on behalf of
the parties and summarized its findings in Para-20 of the
judgment.
The learned trial court recorded that from the shop situated at
Hind Chowk, Chaibasa, the victim (P.W.-3) had come to her
house situated at Rani Colony, Chaibasa for taking meal and
changing clothes and in the meantime, at about 04:00 P.M., the
petitioner suddenly opened the door and entered into the house
and caught hold the victim and assaulted her by fists and slaps
and on the point of knife, gagged her mouth and roped her neck
by 'dupatta' and committed rape upon her and due to shock, she
became unconscious. In the meantime, when her elder sister
(P.W.-4) could not talk to the victim on mobile, she reached her
house and found the door closed from inside. Somehow, she
opened the door and she found the victim unconscious and also
saw the petitioner committing rape upon the victim. When she
resisted, the petitioner assaulted her and fled away leaving
behind his slippers and the knife and P.W.-5 saw the petitioner
while fleeing away. Thereafter, the victim was taken to Sadar
Hospital, Chaibasa in a rickshaw with the help of P.W.-4. All the
three eye-witnesses i.e. P.W.-3 (victim), P.W.-4 (elder sister of the
victim) and P.W.-5 have fully supported the prosecution case.
P.W.-5 had seen the petitioner while fleeing away from the door
of the house of the victim. The evidences of all these three
prosecution witnesses are consistent and they are competent
witnesses and they have given description of the occurrence in the
court in their sequences. P.W.-4 has clearly stated as to how she
reached the place of occurrence and saw the occurrence and she
has valid reason for reaching at the place of occurrence. She
further stated as to how she took the victim to hospital and gave
information to the police and other family members about the
occurrence. Both the eye witnesses to the occurrence, P.W.-3 and
P.W.-4 have not stated anything in their cross-examination so as
to create any doubt in their evidences and their evidence
established the occurrence of rape. The occurrence cannot be
doubted on the basis that the witnesses could not state the name
of the rickshaw by which the victim was taken to hospital which
is not possible in simple sequence. The victim (P.W.-3) has given
actual description of the occurrence in her evidence and
unconsciousness of the victim in an incident of rape is natural.
The victim has stated her age as 16 years in her evidence and 17
years in her statement recorded under Section 164 of Cr.P.C., but
neither any cross-examination was made, nor any suggestion was
put in this respect which clarifies that the victim was aged about
16-17 years. The victim had become unconscious due to the
heinous incident of rape. P.W.-1 and P.W.-2 came to know about
the occurrence from P.W.-4 and saw the condition of the victim in
Sadar Hospital. P.Ws. 1, 2, 3 and 4 have stated in their evidence
that the petitioner had come to their house one and half years ago
and had stayed there, but on this basis, it cannot be denied that
the petitioner committed the heinous incident. Evidence of the
prosecution witnesses appears to be credible and trustworthy and
their evidence establishes that the petitioner had entered into the
house and had committed the rape. The Doctor (P.W.-6) has
stated that sexual intercourse was committed with the victim.
P.W.-7 is the Investigating Officer who is a highly competent
witness and in his evidence in court, he has stated about the
investigation and other facts in sequence and he has fully
supported the prosecution case. Apart from this, Exhibit-7
(Statement recorded under Section 164 of Cr.P.C.) and the
evidence of P.W.-8 (Manoranjan Kumar, Judicial Magistrate, Ist
Class) have also fully supported the prosecution case.
..................
The learned trial court further recorded that the defence has
failed to create any doubt in the prosecution case during cross-
examination. The evidence of the prosecution witnesses have
established that rape was committed upon the victim by the
petitioner in a planned manner and after entering into the house,
the petitioner succeeded to commit rape upon the victim.
15. The learned trial court acquitted the petitioner from the
charges under Sections 307 and 379 of the Indian Penal Code on
the ground that the prosecution has failed to prove the charges
thereunder beyond reasonable doubts.
16. This Court further finds that the learned appellate court also
considered the evidences recorded in para 11 as under:
"11. At the outset, I would like to mention here that the case of
the prosecution is that when the informant was roped with
'Dupatta' and part of 'Dupatta' was put inside her mouth, she
became senseless and she regained her sense in the hospital. As
such, she was in confusion as to whether rape was committed or
not upon her. P.W.-4 is another eye witness who has also not
disclosed the fact of rape at the initial stage. The question for
determination is that whether a girl/female can perceive, can feel
from the physical feature as to whether rape was committed upon
her or not. It is a peculiar case in which the informant has come
with a case that since she had become senseless, therefore, after
regaining sense also, she was not in a position to say as to whether
rape was committed or not upon her. She was in dilemma. It
cannot be expected from a sensible female/girl, even if the rape is
committed in unconscious state of mind. On regaining sense, one
must say from the physical appearance, from the pain in the
private part that she has been committed rape. But she was unable
to say that rape has been committed or not upon her. At the later
stage, she has come with a case that rape has been committed upon
her. P.W.-4 has also deposed that on later stage rape has been
committed on the victim. Learned counsel for the appellant has
rightly pointed out that P.W.-3, in her evidence vide para-11 has
clearly deposed that her statement was recorded on 23rd, at that
time her position was not O.K.. She has further deposed that she
has been committed rape by the accused. PW-4 has clearly deposed
vide para-5 that she had seen the accused committing rape upon
the victim. But in her evidence vide Para-17 has deposed that she
was very much nervous. Therefore, she could not tell the police
regarding the occurrence of rape. PW-6 is the Doctor who has
come with an opinion that no spermatozoa was found dead or alive
on the private part of the victim and vide para-10, she has deposed
that she cannot say as to sexual intercourse has taken place. PW-7
is the I.O. of this case. He has clearly deposed in his evidence vide
para-22 that when the fardbeyan of the victim was recorded, she
was in sense. Her re-statement was recorded on 23.09.12 in which
she has stated that she was unconscious at the time of occurrence
and she could not perceive that rape was committed with her or
not. The aforesaid 'Dupatta' was not seized. The most important
aspect of the case is that had there been any occurrence of rape, she
would have been naked or half naked. There must not be wearing
on her body at the time of rape. But none has come to depose that
her cloth was undressed. Her undergarments were undressed.
Everything is silent which suggests that she was wearing
undergarments and the cloths and without removing the cloths,
rape is not possible to be committed and neither PW- 4, nor PW-3
has come with a clear case that her clothes were undressed."
17. Upon discussing the evidence as aforesaid the learned
appellate court found the possibility of rape as doubtful and
recorded as under in para 11 itself: -
"Therefore, possibility of rape upon her is doubtful. The first
version of the victim would be taken as a true version and
subsequent development or exaggeration shall be viewed as a
concoction, addition, development to implicate the accused in
serious offences. Therefore, the first part of the version of
the victim and her sister (PW-4) if taken to be true,
then no rape was committed with her. It can be said that
certainty as per the facts and circumstances and evidence available
on the record. But at the same time, it cannot be ruled out that the
accused had entered into the house of the victim finding her alone
as his 'Sandle' was found there. It is well settled principle of law
that where the accused entered in a room finding a woman alone
following an attempt made to apprehend him, he fled away, it was
held that intrusion upon the privacy of the woman was sufficiently
proved to bring the case within the ambit of Section 376/511 I.P.C.
i.e. an attempt to commit rape. Where the accused at 04:00 p.m.
entered into the room of a girl who was alone and
the accused wanted to have sexual intercourse by forcibly at the
point of knife and roping 'Dupatta' in or around her neck and
putting part of 'Dupatta' in her mouth, but frustrated by arrival
of PW-4, it is fit to be held that add of Section 222 Cr.P.C. that the
accused has committed offence of attempt to commit rape and from
the facts and circumstances of the case, this part of the prosecution
case has well been proved. Accordingly, I am of the opinion that
the accused is fit to be convicted for the offence u/s 376/511
I.P.C.."
18. Thus, this Court finds that although the learned appellate
court found that the allegation of commitment of rape upon the
victim was doubtful but also recorded that PW-4 has clearly
deposed vide para-5 that she had seen the accused committing
rape upon the victim, but in her evidence vide Para-17 has
deposed that she was very much nervous therefore, she could not
tell the police regarding the occurrence of rape. The appellate
court also recorded on the basis of evidence on record that it
cannot be ruled out that the accused had entered into the house of
the victim finding her alone as his 'Sandle' was found there. The
witness had also identified the petitioner in court. Thus, the
arguments of the learned counsel appearing on behalf of the
petitioner that there is nothing to connect the petitioner with the
alleged occurrence is devoid of any merits. This Court finds that
there is no missing link to the chain of events and prosecution has
been able to prove the alleged offence for which the petitioner has
been ultimately convicted by the learned appellate court beyond
all reasonable doubts.
19. The learned appellate court acquitted the petitioner from
the charges under Section 452 of the Indian Penal Code and
modified the conviction of the petitioner to under Sections
376/511 of IPC and also modified his sentence to undergo
Rigorous Imprisonment for 3½ years for the offence under
Sections 376/511 of the Indian Penal Code and to pay fine of Rs.
5,000/- and in default of payment of fine, to further undergo
Simple Imprisonment for 03 months and if the fine amount is
realized, the same was directed to be given to the Informant and
dismissed the appeal.
20. This Court finds that P.W.-3 is the Informant and victim of
the case and she has fully supported the prosecution case .This
Court further finds that P.W.-4, elder sister of the informant-
victim, is an eye witness to the occurrence and she deposed that
on 22.09.2012, when she could not talk to the Informant, she went
to home at 04:00 P.M., but she found the door closed from inside
and somehow, she opened the door and saw the petitioner
committing rape upon the informant and when she resisted, the
petitioner assaulted her and fled away. Thereafter, she saw that
dupatta was gagged in the mouth of the victim and was also
roped in her neck and the victim had become unconscious. The
petitioner had fled away leaving behind his slippers and the knife
which has been seized and has been marked as Material Exhibits-I
and II. She further deposed that with the help of her neighbor
namely, Sumit @ Abhijit @ Sujit Kumar (P.W.-5), she had taken
the victim to Sadar Hospital, Chaibasa and when she regained
sense, her fardbeyan was recorded. She identified the petitioner in
court. This Court further finds that P.W.-5 is an independent
witness and he deposed that on 22.09.2012, on hearing hulla, he
came out from his house and saw the petitioner fleeing away from
the door. He also identified the petitioner in court.
21. This Court further finds that P.W.-6 is the doctor who had
medically examined the victim on 23.09.2012 and she proved the
medical examination report as Exhibit-2. She stated in her
evidence that sexual intercourse was committed with the victim.
P.W.-8 is the Judicial Magistrate, 1st Class who had recorded the
statement of the victim under Section 164 of Cr.P.C. on 30.10.2012
and he proved the same as Exhibit-7. This Court further finds that
P.W.7 is the Investigating Officer of the case who has deposed
that on 22.09.2012, he had recorded the fardbeyan of the victim
which contains the signatures of the victim and her mother. He
proved the fardbeyan as Exhibit-3, endorsement on the fardbeyan
as Exhibit-4, formal F.I.R. as Exhibit-5 and the seizure list as
Exhibit-6.
22. This Court finds that P.W.-3 (Informant and victim of the
case) has fully supported her version stated in her written report
and therefore, her evidence is fully credible and reliable. P.W.-4
and P.W.-5 are the eye witnesses to the occurrence and they have
fully corroborated the evidence of the victim. The evidences of
P.W.-6 (Doctor), P.W.-8 (Investigating Officer) and P.W.-7
(Judicial Magistrate) have corroborated the attempt of rape
committed by the petitioner upon the victim. All these witnesses
are consistent regarding the occurrence. This Court finds that the
learned appellate court has carefully scrutinized the evidences of
the prosecution witnesses and has found sufficient evidence for
conviction of the petitioner under Sections 376/511 of the Indian
Penal Code instead of convicting the petitioner under section 376
IPC.
So far as the allegation under section 452 IPC is concerned, the
learned appellate court was of the view that the ingredients of
offence under section 452 IPC were not satisfied as it was not the
dominion intention of the petitioner to cause hurt or assault or to
wrongfully restraint any person but was to commit rape upon the
victim and the appellate court acquitted the petitioner for offence
under section 452 of IPC. As the petitioner has been acquitted
under section 452 of IPC by the appellate court, this court is not
inclined to deliberate further upon the same in revisional
jurisdiction.
23. This Court finds that the learned appellate court has passed
a well-reasoned judgment considering every aspect of the matter
and every argument advanced on behalf of the petitioner while
convicting the petitioner under section 376/511 of IPC. and in
fact, the appellate court has modified the conviction of the
petitioner to 376/511 IPC instead of 376 IPC and has accordingly
modified the sentence also. This Court does not find any reason to
interfere with the judgement of conviction and sentence passed by
the learned appellate court. This Court finds that the petitioner
does not deserve any lenient view on the point of sentence
considering the nature of offence and the manner it has been
committed.
24. Accordingly, the conviction and sentence of the petitioner
under Sections 376/511 of the Indian Penal Code passed by the
learned appellate court is hereby upheld and the present criminal
revision petition is hereby dismissed.
25. Bail bond furnished by the petitioner is hereby cancelled.
26. Interim order, if any, stands vacated.
27. Pending interlocutory application, if any, is dismissed as
not pressed.
28. Let the lower court records be sent back immediately to the
court concerned.
29. Let a copy of this order be communicated to the learned
court below through 'e-mail/FAX'.
(Anubha Rawat Choudhary, J.)
Mukul /
